Under customary law the major interests in land identified are the Allodial title, the Usufruct, the customary tenancy and the customary license. For purposes of this article, only the Allodial title and the usufruct shall be discussed.
The allodial title is the highest attainable interest in land whereas the usufruct is the next highest interest attainable. In ancient times, when the land was obtained by reason of conquest or by discovery and settlement, the members who discover the land vest the ultimate or paramount title in the stool and the members obtain the lesser interest of the usufruct. The allodial title then becomes that interest in land which the overlord of that community holds as being the overlord. It is not only restricted to stool lands. It can be held by the family head where the lands in question is a family land. The usufruct even though it is a lesser interest is such that when a member of the stool or family obtains it, and performs all the rightful duties to the stool or the family and recognizes the interest of the stool or family as being the allodial holder, the member with the usufruct maintains absolute control of that piece of land. The subject can make a grant of that land to another person without the consent of the allodial title holder. These two interests were put succinctly by the Court of Appeal thus-
“The estate that the plaintiff acquired in that portion of stool land granted could be described as usufructuary, possessory or determinable title and was a specie of ownership co-existent and simultaneous with the stool’s absolute ownership. The usufructuary was regarded as owner of the area of land reduced into his possession and he could alienate voluntarily to a fellow subject or involuntarily to a judgment creditor without the consent of the stool. There was practically no limitation over the right to alienate that usufructuary title and so long as he recognised the absolute title of the stool, it could only be determined on an express abandonment or failure of his heirs. Neither could the stool divest the usufructuary of his title by alienating it to another without his consent and concurrence.” (Emphasis is mine)
THE POSITION OF THE LAW OF THE USUFRUCT UNDER AMATEI V. HAMMOND
In 1981, the case of Amatei v. Hammond created an exception to the absolute enjoyment of the rights of the usufructuary holder. The court held in the abovementioned case that In instances where a piece of land is needed for the development of the community, such as the building of lavatories, schools, etc., the stool can obtain that piece of land already in the possession of the subject and the prior consent of the subject already holding onto that land isn’t needed. The subject will have to give his land away for the development to go on. Anything short of that will mean that, the subject will be hindering the growth of the community.
From the case then, the allodial title holder can at any time authorize the dispossession of land from a stool subject under the guise of the furtherance of development in the community. The chief’s power to obtain any portion of stool land for development purposes thus became an arbitrary one which can be used by the chief in order to deny the subject of the inherent right to land due him in the community.
CAN A CHIEF STILL DISPOSSESS A PERSON ALREADY IN POSSESSION OF A STOOL LAND FOR ANY PURPOSE?
It is noted that most of the powers as possessed by a stool has been watered down tremendously whether by law or contemporaneity. However, the principle of chiefs dispossessing persons of their land came under heavy criticism in the case of Pastor Yaw Boateng v. Manu where the court stated that the chief in an area can only make a grant of land for any purpose only when it’s a stool land and such land is vacant. If the land is already in the occupation of another, the chief has no power under the constitution or any law to make a disposition of it to another person without the consent of the original holder of the interest in that land. This reasoning is backed by the fact that under the constitution, 1992 article 18, every person has a right to property of which such right must be free from interference. An interference of such a right can only ensue in accordance with law such as under article 20 where the state can be permitted to acquire the land of a person without his consent if necessary in the interest of defense, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such a manner as to promote the public benefit. Furthermore, article 267(3) of the Constitution of Ghana, 1992 provides that, there shall be no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned. The combined effect of these two provisions will lead to no other conclusion than that the power of acquiring land from a subject without his consent for developmental purposes is not one available to the chief. This further rules out the practice of chiefs giving out the lands of subjects or persons already in possession of the land to third parties for whatever purpose without the consent of the original interest holders of the land.
The position of law therefore under the case of Amatei v. Hammond, even though laudable (as of the time the judgment was rendered) may not be viable today. The right of the chief to dispossess the holder of a right in land without the consent of the person for whatever reason is outlawed and same cannot be effected within the confines of the law.
 Total Oil Products Ltd. V. Obeng And Manu  1 GLR 228-237
 Awuah v. Adututu And Another [1987-88] 2 GLR 191
 (1981) GLR 300
 Unreported, Civil Appeal No. J4/24/2008 25th May, 2005
Source: Kweku Attakora Dwomoh